Elson v. Jones

• Decision Date: 27 March 1926
• Citation: 245 P. 95,42 Idaho 349
• Parties: WILLIAM EARL ELSON and LULU F. ELSON, Husband and Wife, Appellants, v. WILLIAM JONES, Respondent
• Court: Idaho Supreme Court

245 P. 95

42 Idaho 349

WILLIAM EARL ELSON and LULU F. ELSON, Husband and Wife, Appellants, v. WILLIAM JONES, Respondent

Supreme Court of Idaho

March 27, 1926

CONTRACTS-DEPENDENCE OR INDEPENDENCE OF COVENANTS-VENDOR AND PURCHASER-TENDER OF PERFORMANCE-PLEADING-INSTRUCTIONS.

1. Precedency of covenants is usually determined by ascertaining intent of parties as shown by contract.

2. Dependence or independence of covenants must be collected from evident sense and meaning of parties, and however transposed they may be in deed their precedency must depend on order of time in which intent of transaction requires their performance.

3. "Condition precedent" of contract is one which calls for performance of some act after contract is entered into, and on performance of which its obligations are made to depend.

4. Where purchaser on contract later sold premises on similar contract, agreeing to make payment due on original contract before payments became due on second contract, such agreement was in nature of encumbrance and was covenant precedent to future payments by later purchaser, precluding necessity of tender of performance by later purchaser on failure to make such payment.

5. Where an adversary has defaulted in precedent covenant, it is not necessary to allege tender of performance or ability to perform.

6. If vendor is unable to perform at time performance is required of him, tender of performance by purchaser is not required.

7. In action by purchaser on contract to recover payments alleged due on similar contract of sale with defendant cross-complaint setting out two contracts and alleging payment to be made by plaintiff on original contract before any payments became due on later contract and failure of plaintiff to make such payment states cause of action for return of purchase money paid thereunder.

8. Where answer to cross-complaint in action by purchaser on contract to recover alleged payments in later similar contract admitted service of notice of forfeiture by original vendor, admitting notice of forfeiture in evidence was not prejudicial, whether it was sufficiently identified or not.

9. Where purchaser on contract later sold premises on similar contract, agreeing to make certain payments under original contract, an instruction, in action by purchaser for alleged payments due under later contract, that if original vendor offered to extend time of payments and permit defendant to keep possession defendant could not urge, as defense for his own default, default of plaintiff, was properly refused where it was not clear whether offer pertained to payments due by defendant or by plaintiff on original contract.

10. Where purchaser on contract later sold premises on similar contract, agreeing to make certain payments on original contract, instruction, relative to later purchaser's defense for not making payments due, that plaintiff had defaulted in payments, that such defense would not apply if there was oral agreement between plaintiffs and original vendor extending payments, held more than favorable to plaintiff, where it was not clear whether additional time was to be given to plaintiff's or defendant's payments.

11. Verdict of jury, founded on sufficient evidence, where the evidence is conflicting, will not be disturbed on appeal.

APPEAL from the District Court of the Eleventh Judicial District, for Jerome County. Hon. T. Bailey Lee Judge.

Action by appellants to collect the sum of $ 3,500, together with interest on a contract to sell certain real property. Judgment for defendant. Affirmed.

Judgment affirmed, Costs awarded to respondent.

E. R Dampier and Harmon E. Hosier, for Appellants.

The cross-complaint does not state a cause of action against plaintiff for the reason that it does not allege that defendant had offered and was able to place the plaintiff in the position he occupied at the time of entering into the contract of sale between himself and defendant, and no action will therefore lie for the return of the purchase money paid by defendant to plaintiff. (Chamberlain v. Ivens, 36 Idaho 235, 210 P. 580.)

The court failed to properly instruct the jury when it refused to give plaintiffs' requested instruction heretofore set out in the specifications of errors. (McClintock v. South Penn Oil Co., 146 Pa. 144, 28 Am. St. 785, 789, 23 A. 211.)

When cross-complaint failed to allege the payment or tender of the deferred payment and demand of conveyance or refusal on part of vendor to convey, it is bad on demurrer. (Townsend v. Tufts, 95 Cal. 257, 29 Am. St. 107, 30 P. 528.)

When the purchaser of land refuses to fulfill the terms of the contract of purchase, not stating any default of the vendor as a reason therefor, but only his own inability to make payments, he is not entitled to a refund of any part of the purchase money paid. (Lemle v. Barry, 181 Cal. 6, 183 P. 148.)

Walters & Barry, for Respondent.

Defendant's cross-complaint states a cause of action. Covenants of parties were "precedent covenants" and "subsequent covenants." (Ernst v. Cummings, 55 Cal. 179; Reindle v. Heath, 115 Wis. 219, 91 N.W. 734; Goodwin v. Lynn, 10 F. Cas. No. 5553; McCormick v. Badham, 191 Ala. 339, 67 So. 609; Gail v. Gail, 127 A.D. 892, 112 N.Y.S. 96; 5 Page on Contracts, 2d ed., pp. 5205, 5209, 5211.)

Where adversary has defaulted in performance of "precedent covenant" it is not necessary to allege tender of performance or ability to perform. (5 Page on Contracts, 2d ed., p. 5228; 5 Cal. Jur., p. 400, sec. 239; 3 Elliott on Contracts, pp. 200, 227, secs. 2025, 2044; 6 Page on Contracts, 2d ed., p. 5727, sec. 3250; Spalding v. Coeur d'Alene R. & N. Co. , 5 Idaho 528, 51 P. 408; San Diego Construction Co. v. Mannix, 175 Cal. 548, 166 P. 325; National Pacific Oil Co. v. Watson, 184 Cal. 216, 193 P. 133.)

GIVENS, J. William A. Lee, C. J., and Wm. E. Lee and Taylor, JJ., concur.

OPINION

GIVENS, J.

On December 28, 1918, Edward Reynolds and wife contracted to sell certain real property to William Earl Elson and wife, appellants, on an installment contract, the payment involved in this action being $ 3,000 due on or before December 28, 1920. On October 25, 1920, appellants contracted to sell the same premises to William Jones, respondent, on a similar contract, respondent to assume the payments under the Reynolds-Elson contract in so far as it concerned payments due after January 1, 1921. Appellants were obligated, but failed to make the payment of $ 3,000 due Reynolds December 28, 1920, and respondent thereafter failed to pay appellants the $ 3,500 due January 1, 1922, under the Elson-Jones contract, upon which this action was brought. On January 7, 1922, the payment of December 28, 1920, not having been made, notice was served upon appellants of a forfeiture of the contract and respondent was given notice to vacate the premises, which he did. Respondent as a justification for his failure to make the $ 3,500 payment due appellants January 1, 1922, by cross-complaint set up the failure of appellants to make the payment due Reynolds, the forfeiture of the contract and asked damages in the sum of $ 10,000 by way of a return of the purchase price paid to appellants and Reynolds. The jury found in favor of respondent, allowing him a recovery of $ 8,000, the amount paid by him to appellants.

Appellants specify as error: that the cross-complaint does not state a cause of action; that the verdict is contrary to the evidence; that the court erred in admitting certain evidence, and in refusing to give appellants' requested instruction.

Appellants urge that respondent's cross-complaint does not state a cause of action, for the reason that it does not allege that respondent had offered or was able to place the appellants in statu quo and that no action will therefore lie for a return of the purchase money paid by respondent to appellants. The cross-complaint set out the two contracts and the payments to be made by respondent and appellants and the dates thereof, and the failure of appellants to make the payment of $ 3,000 December 28, 1920, more than one year prior to the time the payment from respondent to appellants was due. The precedency of covenants is usually determined by ascertaining the intent of the parties as shown by the contract. The rule laid down by Lord Mansfield, which has been followed in practically every instance is:

"That the dependence or independence of covenants was to be collected from the evident sense and meaning of the parties and that, however transposed they might be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance." (Jones v. Barkley, 2 Doug. 684, 691; Reindl v. Heath, 115 Wis. 219, 91 N.W. 734; 13 C. J., sec. 539, p. 568; Ernst v. Cummings, 55 Cal. 179; Goodwin v. Lynn, 10 F. Cas. No. 5553.) A condition precedent of a contract is one which calls for the performance of some act, after the contract is entered into, and upon the performance of which its obligations are made to depend. (Northwestern National Life Ins. Co. v....